True Vermont

The Vermont Supreme Court has presided over a steady erosion of privacy rights including astounding decisions in State v. Eckhardt (private driveway part of highway system for purposes of enforcement of motor vehicle laws) and  State v. Costin (no warrant required to install video surveillance equipment on private property).  Finally it seems the court has had enough, reversing the conviction in a case where a National Guard helicopter bearing police hovered over the defendant’s well-posted property at low altitude for about a half hour and discovered marijuana plants.  (State v. Bryant)  Unfortunately, as noted by Justice Dooley in his dissent, the decision is so muddled that it offers no guidance to either police or citizens as to what behavior is permitted and what is not.   

Dooley suggests remanding the case to determine if the police first spotted the plants at the 500-foot altitude permitted by law and regulation, rather than the 50 to 100 feet where the chopper spent most of its time.  This is more than a little disingenuous in that the cops had already claimed that they never went below 500 feet, a claim the trial court found “not credible” in light of extensive witness testimony to the contrary.  It’s going to take yet another violation of someone’s privacy to get this sorted out.

 The Vermont Supreme Court recently threw out the conviction of  Michael Brillon (State v. Brillon)  producing howls of outrage from both the governor and various members of the legislature.  Brillon had been in jail nearly 3 years without trial, which the court found to be a violation of his constitutional right to a speedy trial.  Both the state and federal constitutions provide for “speedy [and] public trials” and, while the definition of “speedy” is subject to interpretation, the federal Speedy Trial Act specifies 70 days following indictment with several exceptions.  (A manual for U.S. attorneys discusses the matter in some detail here.)

 The obvious purpose of the right is to prevent the state from locking up its citizens for an extended period of time (whether from neglect or malice) while simultaneously denying any forum to prove their innocence.  The court cannot micromanage the affairs of the legislative and executive branches, and the only tool available to correct a gross abuse of due process is to vacate the conviction.  As the court majority succinctly put it: “defendant’s trial was delayed for several months, even years, because of the failure of several assigned counsel to do anything to move his case forward.”  Read more »

haven’t we been down this road before?  In response to recent drug-related in violence in Rutland, Sen. Kevin Mullin (R-Rutland) has come up with a novel solution:  increased penalties for possession of heroin and cocaine.  It’s difficult to imagine where Sen. Mullin might have been for the last 20 years.  The federal war on drugs began in earnest in 1987 with the implementation of the Sentencing Guidelines, followed by ever-increasing penalties, and anyone the local authorities really wanted to make an example of was turned over to the feds, although the state penalties had been increased as well.   Which brings us to where we are now:  Rutland is in the grip of an unprecedented heroin epidemic (which, fortunately, seems to be tailing off) and the state corrections budget is more than that for higher education and growing. 

Most of Rutland’s violence problems have been attributed to criminals from New York and Massachusetts, and former mayor Jeff Wennberg already discovered a successful formula to run them out of town. There are already tough penalties for shooting someone.  So what will Sen. Mullin’s bill, already approved 5-0 by the Senate Judiciary Committee, accomplish?  Absolutely nothing, unless one counts pandering to his constituents. 

The following ad appeared in the February 12^th edition Valley Voice, serving the Middlebury area:

Note that the unnamed employer is reserving the right not to pay the employee for up to 1/4 of the contract period or about 8 weeks. Note also that there’s no address or phone number listed for the Career Resource Center. Neither is it in the new Champlain Valley Telecom phone book, although a Google search indicates it’s part of the Vermont Department of Labor. It sure doesn’t look like they want anyone to apply – a justification to hire even more Mexicans of questionable immigration status on area farms.

OK all you prospective Vermont dairy hands that want an 8-week unpaid vacation, get on your computers and figure out where to apply.

Last November a Colchester police officer allegedly failed to charge an off-duty Burlington police officer suspected of driving drunk.  The alleged drunk resigned, and the Colchester officer was fired along with another Burlington officer who allegedly failed to be forthcoming during an internal investigation.  Public criticism has, at times, been harsh.

In a January 28^th  interview with WPTZ television, Chief Steve McQueen of the Winooski department is worried about what effect people’s questioning of police integrity will have on morale.  Morale doesn’t seem to be a problem for everyone, as the reticent Burlington officer has decided to appeal his firing to the city Police Commission.  Chief McQueen teaches at the Police Academy.  How about a course in ethics? 

“In this country we’ve lost the war on drugs but we still have to fight the battle.”

 – Lamoille County Sheriff Roger Marcoux, president of the Vermont Sheriff’s Association, during a hearing before the Vermont Senate Judiciary Committee considering whether to decriminalize possession of small amounts of marijuana. 

Senators Claire Ayer and Harold Giard of (both D-Addison) have cosponsored a bill to provide free health care to illegal immigrants, specifically in the farming and food service sectors. During an interview with Vermont Public Radio Luz Felix-Marquez, a UVM medical student who helped establish a mobile health clinic for the farmworkers, said: “And it’s not that they don’t realize that that they’re sick. It’s just that whatever they’re experiencing isn’t impeding their work. And until it impedes their work, that’s when they’re going to access care.” Despite assurances by area farmers that they’re treating their foreign workers well, this sure sounds like exploitation. Neither Sen. Ayer nor Felix-Marquez said who was paying under the present system, but there’s no doubt who’s going to pay under Ayer’s plan.

Sen. Ayer: “The jobs that very often illegal migrant workers have are jobs that Vermonters don’t want. It isn’t that they’re displacing people, and that eventually we’ll take back the jobs. People don’t want them. So we need them to keep our dairy economy, our ski economy, and in some cases our food service economy going. We need them. It’s a fact of life, and we need to take care of them, too.”

The Ayer/Giard plan also ignores the fact that the farmers, and perhaps some of the outreach workers as well, are felons under federal law. (See 8 USC §1324) Before we go down this road, perhaps it’s time to do a study to see if Vermonters would do these jobs if they were paid a living wage and got free health care.

According to an AP story, a Maine man sold some drugs to the cops, then bought a winning lottery ticket with the proceeds.  He was busted a few minutes later, and the ticket confiscated.  In this case, there can be no doubt that the ticket was bought with ill-gotten gains, and the court will most likely order ticket forfeited.  Do you think the cops will then rip it up, thereby refunding the money to the taxpayers, or cash it and spend the money?

The Vermont Association of Hospitals and Health Systems recently announced a new policy not to seek payments from patients or insurers for obvious medical errors.  Among the mistakes that hospitals won’t charge for are surgery on the wrong patient, surgery on the wrong body part and retention of a foreign object in the body.  No doubt it was only coincidence that a few days before the announcement a state law took effect creating a medical error reporting system.

Governor Douglas, attending the press conference where the new policy was announced said, “Vermont is the third state to take this voluntary step, putting us well ahead of others in this area.”  Wow!  With this kind of innovation, can it be long before the health care crisis is completely resolved?

The full Rutland Herald article on this matter is here.

The government filed an unopposed motion for a stay (temporary cessation of activity) in the Lambda Iota fraternity house forfeiture case, and Judge Sessions recently granted it.  In support of its motion the government stated that “Investigation into additional activities and/or members of the conspiracy is ongoing…” and “deponents in the civil case will likely include federal defendants and targets, as well as confidential sources and informants.  Such discovery provides early and broader discovery than would otherwise be possible in the  context of the pending criminal matter.”

So what was the hurry to file the forfeiture papers before the investigation was completed?  The house certainly wasn’t going anywhere.  And the government seems to be implying that it intends to withhold information from criminal defendants that might come out later in another proceeding.

Burlington Police Chief Tremblay (recently appointed Commissioner of Public Safety) said of the forfeiture:  “By removing and forfeiting properties used by these drug traffickers as their base of operation, we reduce the threats to and increase the safety of our city and its citizens.”  Say what?  The dealers have already been arrested, and taking a property in which they have a miniscule interest could have no possible effect on drugs.  It’s more likely the Chief’s real interest is the 80% of funds procured from federal forteitures that are distributed to local and state law enforcement agencies.  (Rutland Herald, December 9, 2007)  How much of the nearly million dollars the Burlington police stand to gain from the Lambda Iota forfeiture will be used to reduce taxes in the Queen City?  Most likely none.  Again, it’s time to end civil forfeiture for good.